Autonomy, Residence, and Return

This article argues that those unjustly displaced from a particular territory T cannot involuntarily lose their rights to reside there, or, as a consequence, their rights of return to it, even if they develop territorially grounded conceptions of the good where they now reside. The contrary position fails to accord the unjustly displaced the respect due to them in virtue of their personal autonomy. Facts commonly alleged to justify the supersession of rights of return to T only provide evidence that the unjustly displaced have abandoned their rights to reside there, or would do so if given a just opportunity to return. The rights of those now residing in T, which author argues may include those responsible for the unjust displacement, may limit the right of return but are unlikely to preclude it altogether

On Moral Arguments Against a Legal Right to Unilateral Humanitarian Intervention

As the international response to recent events in Darfur demonstrates, the restriction of authority to intervene to the United Nations poses the greater legal barrier to intervention. From a practical perspective, then, the more pressing question may be whether international law ought to be modified to permit states, or multi-state organizations, to carry out unilateral humanitarian interventions; that is, interventions that are not authorized by the United Nations. The issue here is essentially a moral one: would the incorporation of a right to unilateral humanitarian intervention entail a moral improvement to international law – for example, a decrease in the number and severity of basic human rights violations that occur under it – or would it instead lead to an even greater disparity between legality and morality? Those theorists who have considered the issue have been quick to assert the latter, emphasizing in particular the possibility that states would abuse a unilateral right to humanitarian intervention, so that ultimately a legal system that included such a right would facilitate greater human rights violations than occur under the present international legal system. Though this conclusion may be correct, this essay maintains that the arguments that have been provided to support it are inadequate to that task

International Law, Institutional Moral Reasoning, and Secession

This paper argues for the superiority of international law’s existing ban on unilateral secession over its reform to include either a primary or remedial right to secession. I begin by defending the claim that secession is an inherently institutional concept, and that therefore we ought to employ institutional moral reasoning to defend or criticize specific proposals regarding a right to secede. I then respond to the objection that at present we lack the empirical evidence necessary to sustain any specific conclusion regarding an international legal right to secession. Specifically, I argue that we ought to adopt a precautionary approach, and that such an approach justifies giving no weight to promoting political self- determination per se when considering whether to reform international law governing secession. I conclude with several reasons to think that even a remedial right to unilateral secession will detract from, not enhance, the international legal order’s ability to promote peace and human rights

On a Moral Right to Civil Disobedience

In this essay I argue that citizens of a liberal-democratic state, one that I argue has a morally justified claim to political authority, enjoy a moral right to engage in acts of suitably constrained civil disobedience, or what I will call a moral right to public disobedience. Such a claim may well appear inconsistent with the duty usually thought to correlate to a legitimate state’s right to rule, namely, a moral duty to obey the law. If successful, however, the arguments that follow entail that the duty correlative to a liberal-democratic state’s justified claim to political authority is in fact a disjunctive one: either citizens of such a state must obey the law or they must publicly disobey it

\u3ci\u3eA Theory of Political Obligation: Membership, Commitment, and the Bonds of Society\u3c/i\u3e by Margaret Gilbert (Book Review)

Does membership in a political society, in and of itself, involve obligations to uphold that society’s political institutions? Margaret Gilbert offers a novel argument in defense of an affirmative answer to this question, which she labels the membership problem. Given a plausible construal of the concepts obligation, political society, and membership in a political society, Gilbert argues that it follows analytically that to be a member of a political society just is to have an obligation to uphold and support that society’s political institutions. The key to Gilbert’s argument is the idea of a joint commitment; those who jointly commit to X as a body thereby acquire obligations vis-à-vis the others with whom they jointly act. Social groups, including political societies, exist as the result of such a commitment amongst those who constitute them. In virtue of their joint commitment, agents form a plural subject, and so Gilbert titles her solution to the membership problem the plural subject theory of political obligation

On the Concept of a Morally Relevant Harm

In this paper I explicate and defend the concept of a morally relevant harm. This concept figures prominently in common-sense and contractualist moral reasoning concerning cases where an agent can prevent harm to members of a large group or a small one, but not both. When the two harms to which members of these groups are exposed are morally relevant to one another, an agent is permitted (or perhaps required) to take into account the number of people he can save. When the harms are irrelevant, an agent should not even consider preventing the lesser harm, regardless of how many people will suffer it. I argue for what I label the orbital conception of morally relevant harm, according to which harms that fall within the “orbit” of a given harm are relevant to it, while all other harms are not. In addition, I contend that the possibility of preventing a harm provides both a first-order reason to prevent that harm, and a second-order reason not to consider preventing irrelevant harms. I then demonstrate how this understanding of the concept of a morally relevant harm avoids two objections raised by Alastair Norcross: first, identifying a point along a continuous scale of harms at which the divide between relevant and irrelevant harms occurs, and second, the entailment that the mere possibility of being able to prevent harm that one is morally forbidden from preventing can determine which of two other actions morality requires

The Principle of Fairness and States’ Duty to Obey International Law

Philosophers and political theorists have developed a number of different justifications for the duty to obey domestic law. The possibility of using one (or more) of these justifications to demonstrate that states have a duty to obey international law seems a natural starting point for an analysis of international political obligation. Amongst the accounts of the duty to obey domestic law, one that appears to have a great deal of intuitive appeal, and that has attracted a significant number of philosophical defenders, is the principle of fairness (or fair play). In this paper, I examine the possibility of using the principle of fairness to justify a moral duty on states to obey international law

What Makes a Social Order Primitive? In Defense of Hart’s Take on International Law

The widespread antipathy to Hart\u27s description of international law as a simple or primitive social order, one that lacks a rule of recognition and therefore does not qualify as a legal system, rests on two misunderstandings. First, the absence of a division of labor in identifying, altering, applying, and enforcing law is as much, if not more, central to Hart\u27s understanding of what makes a society primitive as is the absence of any secondary rules at all. Second, it is primarily in terms of the presence of such a division of labor and the implications it has for the ontology of law that Hart understands the idea of a legal system and the ideas of a rule of recognition and legal validity that accompany it. Interpreted in light of these claims, Hart\u27s characterization of international law is quite plausible; moreover, embracing it may well provide both theoretical and moral benefits

What Makes Law? Dworkin, Fish, and Koskenniemi on the Rule of Law

What makes Law? So formulated, the question is an ambiguous one. On what I will call the micro-level, it asks for the successful conditions for an assertion of law, what justifies or provides the truth conditions for claims such as ‘ I have a legal right to ϕ ’ or ‘ you broke the law ’. Much of the debate between Ronald Dworkin and Stanley Fish concerns this question; for example, the role that theory plays in actors’ identification of the law, or the constraints, if any, that legal materials themselves impose on what counts as an interpretation of them. At the macro-level, the question ‘what makes law?’ concerns the features that distinguish a genuinely legal political order from other types of political order. Or, in the somewhat archaic phrase, what makes it the case that a society is ruled by law and not by men? I will argue that Dworkin and Fish agree on the answer to this question, and so too does the contemporary international legal theorist Martti Koskenniemi. Specifically, each of them identifies law with a practice of government informed by fidelity to the ideal of the rule of law, or legality. All three theorists conceive of legality as an attitude, mindset, or approach to constructing the social world, one that is most fully developed in members of the legal profession, or what is the same, those who have been habituated into a culture devoted to the ideal of govern- ment in accordance with the rule of law. And all three develop their account of law as a practice of government informed by legality by contrasting it with an instrumental or managerial approach to government

Should the Law Convict Those Who Act from Conviction? Reflections on a Demands-of-Conscience Criminal Defense

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful violations of the law for which an actor ought not to be blamed; rather, they are violations of the law that are not (morally) wrong in virtue of their illegality. It is the absence of wrongdoing, and not merely the absence of fault, that renders the conviction and punishment of those who perform acts of civil disobedience inappropriate